2 On 4 September 2003 the council decided to grant a permit for the development of a non-illuminated tennis court and other associated works. A notice of decision to grant was prepared and is dated 5 September 2003. A letter, dated 5 September 2003, was sent to the permit applicant and to Mr Mantello. I am told that the permit applicant received that letter on Monday 8 September 2003 and I find that Mr Mantello received the letter on that day.

3 The time for the lodgement of an appeal by an objector against a notice of decision is 21 days after the receipt of the notice of decision which, in this case, is 29 September 2003.

4 Mr Mantello prepared an application for review on 26 September 2003. That application for review named Mantello Property Group Pty Ltd as the applicant. That person, in fact, was not an objector and could not have lodged such an application. However I do not regard this as a matter that could not be corrected and, if appropriate, it should be corrected. For all intents and purposes the Mantello property is the Mantello property and Mr Mantello is the objector, whether it is in fact owned by Mantello Holdings or Mantello Property Group or, for that matter, by Mr Mantello in his own right.

5 The application for review was posted, I am told, on 29 September 2003. It appears to have been received by the tribunal on 2 October 2003. It was certainly possible that there was some delay on the part of the tribunal but it was unlikely that delay was more than a day. Therefore I find that the appeal was not in time.

6 The question then arises as to whether I should extend the time. The power to extend the time is given by section 126 of the Victorian Civil and Administrative Tribunal Act. That power is conditioned by a provision that prevents the extension of time if it would cause any prejudice or detriment to a party or potential party that could not be remedied by an appropriate order for costs or damages. There has been some controversy as to whether or not that requirement includes prejudice by reason of the fact that an appeal will now be brought, whereas if the extension is not granted it would not be brought. As interesting as that legal question is, I do not feel it need be resolved in this case. Regardless of whether prejudice is a mandatory factor, it is certainly a discretionary factor.

7 In Harris Developments Pty Ltd v Maroondah City Council, (29 November 1999), the tribunal observed that the applicant bears the onus of persuading the tribunal that the time ought be extended. In this case that means that Mr Mantello bears the onus. In Clifton Properties Corporation Pty Ltd v Litewaite Constructions Pty Ltd [1999] VCAT 49 the tribunal made certain observations as to the nature of the discretion that was required to be exercised. The tribunal said that a factor to be taken into account is that if the extension of time is not granted, the respondent would be free of the possibility of an appeal once the time limit had expired and that this vested right is not lightly to be disturbed. It was said that for the right to be disturbed the tribunal must be strongly of the opinion that the time should be extended.

8 It must be apparent from the way I have approached this case that I am somewhat equivocal about whether justice requires or supports the extension of time. Being somewhat equivocal I do not think it can be said that Mr Mantello has discharged the onus that the law imposes on him.

9 It does seem somewhat harsh that a time limit operates so as to shut out a person if they miss it by one or two days, especially in circumstances where that person has prepared the application before the expiry date. Mr Mantello told me he had indicated to the respondent that he was going to appeal and put it in the mail on the day that the appeal was required to be lodged with the tribunal. It also seems harsh in the context of Mr Mantello being a neighbour and obviously having an interest. He is not a busybody. I think it is also harsh given the way he has approached this proceeding. He has been honest and open with me. I have no doubt that he is approaching the matter in an honourable way. But harsh though it is, the law requires objector appeals to be in by the day that the regulations require and that if the appeal is not in on time, the applicant for the permit has every right to think that they have a permit and not merely a decision of the council in their favour.

10 Another matter that has influenced me is that the proposed tennis court is not cheek by jowl with Mr Mantello's property, but is separated to a reasonable degree. Further, tennis courts are quite common in Portsea. I think in the circumstances that strictness is called for here, at least when it is the applicant who bears the onus of persuading me that the time should be extended. I find that that onus has not been discharged.

11 I have been told that Mr Bouris is contemplating seeking a permit to put the court on another piece of land rather than adjacent to Mr Mantello's property. I think that is a matter Mr Bouris should explore in the interests of good neighbourly relations.